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The Police May be Listening

Section 184.4 of the Criminal Code permits a peace officer to intercept certain private communications, without prior judicial authorization, if the officer believes on reasonable grounds that the interception is immediately necessary to prevent an unlawful act that would cause serious harm, provided judicial authorization could not be obtained with reasonable diligence.  In principle, Parliament may craft such a narrow emergency wiretap authority for exigent circumstances.  The more difficult question is whether the particular power enacted in s. 184.4 strikes a reasonable balance between an individual’s right to be free from unreasonable searches or seizures and society’s interest in preventing serious harm.  To the extent that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm, this section strikes an appropriate balance.  However,s. 184.4 violates s. 8 of the Charter as it does not provide a mechanism for oversight, and more particularly, notice to persons whose private communications have been intercepted.  This breach cannot be saved under s. 1 of the Charter.

The language of s. 184.4 is sufficiently flexible to provide for different urgent circumstances that may arise, and it is far from vague when properly construed.  While it is the only wiretapping power that does not require either the consent of one of the parties to the communication or judicial pre‑authorization, a number of conditions and constraints are embedded in the language of s. 184.4 that ensure that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm.  Police officers may only use this authority if they believe “on reasonable grounds” that the “urgency of the situation” is such that an authorization could not, with “reasonable diligence”, “be obtained under any other provision of this Part”.  Each of these requirements provides a legal restriction on the use of s. 184.4.  The provision imports an objective standard — credibly based probability for each of the requirements.  The conditions incorporate implicit and strict temporal limitations and the onus rests with the Crown to show, on balance, that the conditions have been met.  As time goes by it may be more difficult to satisfy the requirement that an authorization could not have been obtained with reasonable diligence, the situation is urgent or it is immediately necessary to prevent serious harm.

The objective of preventing serious harm to persons or property in exigent circumstances is pressing and substantial and rationally connected to the power provided under s. 184.4.  It is at the proportionality analysis of R. v. Oakes that the provision fails.  The obligation to give notice to intercepted parties would not impact in any way the ability of the police to act in emergencies.  It would, however, enhance the ability of targeted individuals to identify and challenge invasions to their privacy and seek meaningful remedies.  Section 184.4 of the Code is constitutionally invalid legislation.  This declaration of invalidity is suspended for 12 months to allow Parliament to redraft a constitutionally compliant provision.


See: R. v. Tse, 2012 SCC 16

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